State v. Steen

• Decision Date: 18 August 2000
• Docket Number: No. 990332 to 990334.
• Citation: 615 N.W.2d 555,2000 ND 152
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Vance Owen STEEN, Defendant and Appellant.
• Court: North Dakota Supreme Court

615 N.W.2d 555

2000 ND 152

STATE of North Dakota, Plaintiff and Appellee, v. Vance Owen STEEN, Defendant and Appellant.

Nos. 94.

Supreme Court of North Dakota.

August 18, 2000.

John R. Gregg, Special Assistant State's Attorney, Bottineau, for plaintiff and appellee.

Richard B. Thomas, Thomas & Thomas, Minot, for defendant and appellant.

NEUMANN, Justice.

[¶ 1] Vance Owen Steen appealed from criminal judgments entered on jury verdicts finding him guilty of negligent homicide, leaving the scene of an accident involving death or personal injury, and driving in violation of a restricted license. We conclude submission to the jury of an incorrect verdict form on negligent homicide was harmless error and the evidence was sufficient to support Steen's conviction for leaving the scene of an accident. We further conclude the trial court failed to comply with N.D.R.Crim.P. 32(c)(4)(E), and we remand to the court for the limited purpose of preparing and attaching its findings on controverted statements to the presentence investigation report. We affirm and remand.

I

[¶ 2] During the afternoon of September 17, 1998, Steen drove from his father's farmstead near Maxbass to Minot to visit Darren Foster, a friend whose wife had given birth to a baby girl the previous day. Before going to the hospital, they met at a Minot restaurant and drank several beers. After visiting Foster's wife and baby, Foster and Steen left the hospital about 8:30 p.m. in Steen's car. Foster had decided to spend the night at Steen's home, rather than drive all the way back to his home in Rolla. Steen lived with his girlfriend in a trailer on his father's farmstead. Before leaving for Steen's home, they went to several Minot bars and drank more beer.

[¶ 3] Foster and Steen left Minot shortly before 1 a.m. According to Steen, he drove, rather than Foster, because "it was my car and I thought he was drunk—a lot drunker." They purchased more beer from an off-sale establishment and left, driving on back roads to Steen's farmstead. After reaching the junction of Bottineau County Highways 30 and 17C near the farmstead, Steen thought his cows might be loose and drove one mile north of the intersection. Steen discovered cows out on the road and attempted to chase them back into a fenced pasture with the car. Steen's car became stuck in the process, and after unsuccessfully attempting to free the car, the two men began to walk to the farmstead so Steen could use his father's pickup to pull the car out of the ditch. After walking about 200 yards south on a gravel road toward the intersection, Steen decided to take a shortcut and walk diagonally across a field directly to the farmstead about three-quarters of a mile away. Foster stayed on the road.

[¶ 4] Steen got his father's pickup, drove about one-half mile west to the intersection and proceeded north, traveling between 40 and 45 miles per hour. According to Steen, he saw an object lying on the road and drove past it. Realizing it could have been a body, he returned and found Foster lying on the road. Steen said when he found Foster on the road, Foster was gasping. Steen drove the pickup back to the farmstead, awakened his girlfriend and told her to call 911. Steen, who was hysterical, told his girlfriend he thought Foster had been run over. His girlfriend said Steen "thought he ran him over but didn't know for sure if he did." Steen also told his girlfriend he did not think he saw any other vehicles on the road. Steen awakened his father and they drove back to the scene and waited for emergency assistance. The ambulance arrived about 3:30 a.m., and deputy sheriff and highway patrol officers arrived shortly afterward. Foster was pronounced dead at the scene.

[¶ 5] An autopsy revealed Foster had been run over while lying on his back. He had tire marks on his hip, chest and arm. His ribs and sternum were fractured and his heart had been ruptured. According to the pathologist, death would have resulted within three minutes of the rupture.

[¶ 6] Steen was charged with negligent homicide under N.D.C.C. § 12.1-16-03, driving in violation of a restricted license under N.D.C.C. § 39-06-17, and leaving the scene of an accident involving death or personal injury under N.D.C.C. § 39-08-04. The jury found Steen guilty of all counts, and Steen was sentenced to five years of imprisonment, with two years suspended and five years of supervised probation beginning at the time of his release. Steen appealed.

II

[¶ 7] Steen argues his negligent homicide conviction should be reversed because the jury was given a general verdict form for negligent homicide which contained a special interrogatory inquiring whether the conviction was based in part on evidence of Steen operating a motor vehicle while under the influence of alcohol.

A

[¶ 8] At trial, the prosecutor requested the following verdict form be submitted to the jury.

We, the Jury duly impaneled and sworn in the above-entitled action, do find the Defendant, Vance Owen Steen, GUILTY of the crime of negligent homicide, as charged in the Information.

If you find the Defendant, Vance Owen Steen, guilty of the offense of negligent homicide as charged in the Information, please answer the following question: Is the conviction based in part on evidence of Vance Owen Steen's operation of a motor vehicle while under the influence of alcohol? ANSWER: — Yes — No

The prosecutor argued the special interrogatory was appropriate because, under N.D.C.C. § 39-08-01.2(1)(a), a mandatory minimum sentence is required if a "person is convicted of an offense under chapter 12.1-16 and the conviction is based in part on the evidence of the person's operation of a motor vehicle while under the influence of alcohol or drugs...." Steen argued the interrogatory was inappropriate because it related to a sentencing matter which was for the trial court to decide at the time of sentencing. The trial court agreed with Steen's argument, rejected the verdict form with the special interrogatory, and ruled a general verdict form would be used. Nevertheless, the jury was inadvertently given the rejected form for its deliberations, and answered the special interrogatory in the affirmative.

[¶ 9] Generally, the rules of criminal procedure do not provide for special verdicts or general verdicts accompanied by special interrogatories as do the civil rules, and the only proper verdicts are guilty or not guilty. State v. Morris, 316 N.W.2d 80, 83 (N.D.1982). Special verdicts or interrogatories in criminal cases are disfavored because they may "coerce the jurors into rendering a guilty verdict," State v. Sheldon, 301 N.W.2d 604, 614 (N.D.1980), or "destroy[ ] the ability of the jury to deliberate upon the issue of guilt or innocence free of extraneous influences." State v. Simon, 79 N.J. 191, 398 A.2d 861, 865 (1979). See also State v. Bartkowski, 290 N.W.2d 218, 222 (N.D.1980)

; 3 Wright, Federal Practice and Procedure: Criminal 2d, § 512 (2d ed.1982); 26 Moore's Federal Practice § 631.03[1] (3d ed.1997). Thus, N.D.R.Crim.P. 31(e) provides for a special verdict form only in very limited circumstances in criminal trials, relating only to certain defenses raised by the defendant and overt acts of treason. See State v. Vetsch, 368 N.W.2d 547, 552 n. 5 (N.D.1985). Several courts have held the use of jury interrogatories in criminal trials is not per se impermissible. Their use has been approved in criminal trials where the special findings benefit the defendant, were neither inherently prejudicial nor predeterminative of the jury's verdict, or assisted the court for sentencing purposes. See, e.g., United States v. Pforzheimer, 826 F.2d 200, 205-06 (2d Cir.1987); Commonwealth v. Golston, 373 Mass. 249, 366 N.E.2d 744, 752 (1977); People v. Ribowsky, 77 N.Y.2d 284, 567 N.Y.S.2d 392, 568 N.E.2d 1197, 1201 (1991). As the Minnesota Court of Appeals summarized in State v. Robinson, 476 N.W.2d 896, 903 (Minn. Ct.App.1991),

aff'd as modified, 480 N.W.2d 644 (Minn.1992), "a special interrogatory may be used in a criminal case if it relates solely to sentencing and does not tend to lead a jury to a finding of guilt."

[¶ 10] In line with this reasoning, we have interpreted N.D.C.C. § 12.1-32-02.1, which provides minimum prison terms for armed offenders, to require the jury to make a special finding that in the course of committing the offense, the accused was in possession of a dangerous weapon, an explosive, or a firearm. See, e.g., State v. Sheldon, 312 N.W.2d 367, 370 (N.D.1981)

. This result was also called for by the statute, which specifically provides the mandatory prison terms apply "only when possession of a dangerous weapon, explosive, destructive device, or firearm has been charged and admitted or found to be true in the manner provided by law...." N.D.C.C. § 12.1-32-02.1 (emphasis added). On the other hand, the trial court rather than the jury, has the duty, in accordance with the terms of the statute, of determining dangerous special and habitual offender status under N.D.C.C. § 12.1-32-09.

See, e.g., State v. Marshall, 1999 ND 242, ¶¶ 6-8, 603 N.W.2d 878.

[¶ 11] We believe the trial court properly rejected the special interrogatory proposed by the prosecutor. Under N.D.C.C. § 39-08-01.2(1)(a) and (2), a court is required to give a mandatory minimum sentence of imprisonment if a negligent homicide conviction is based in part on evidence of the person's operating a motor vehicle while under the influence of alcohol, and is prohibited from suspending the sentence "unless the court finds that manifest injustice would result from imposition of the sentence." The statute is silent about whether a judge or a jury is to decide whether a conviction is based in part on evidence of a person driving while under the influence of alcohol. Punishment, however, is not the concern of the jury. State v. Mounts, 484 N.W.2d 843, 845 (N.D.1992); State v. Huber, 361 N.W.2d 236, 238 (N.D.1985).

[¶ 12] Because the...